In January, criminal defense lawyer Terry Kindlon of Albany, NY filed the first motion to dismiss criminal charges in a terrorism case based on Bush's warrantless electronic surveillance program. His motion alleged:

"The government engaged in illegal electronic surveillance of thousands of U.S. persons, including Yassin Aref, then instigated a sting operation to attempt to entrap Mr. Aref into supporting a nonexistent terrorist plot, then dared to claim that the illegal NSA operation was justified because it was the only way to catch Mr. Aref," Kindlon's motion said.

On March 11, the Judge issued a one page order denying Terry's motion but refused to share his reasons -- he designated his order "classified."

Terry has now sought the intervention of the Second Circuit Court of Appeals in a mandamus action, seeking an order compelling the Government to disclose whether his clients were the subjects of NSA surveillance. It is the first case about the NSA surveillance to reach a federal appeals court.

The filing, known as a writ of mandamus, is a rare legal move ultimately aimed at forcing the federal government to disclose whether it used warrantless wiretaps to spy on the men before they were targeted in an FBI sting. If that was the case, the attorneys said they hope to have the indictment against their clients thrown out.

At the heart of the challenge:

Aref's attorney, Terence L. Kindlon, and Hossain's attorney, Kevin Luibrand, cite a New York Times story two months ago that said unnamed sources confirmed warrantless wiretaps may have helped trigger interest in Aref by the FBI. If that's true, Kindlon said, the entire case should be thrown out of court.

Primarily, the defense is asking the Second Circuit to compel the District Court to direct the government to come clean about the role warrantless wiretaps played in its case.

In other Kindlon related news, Terry writes:

My son the lawyer, Captain Lee Kindlon, USMC JAG, touched down in Kuwait about three hours ago en route from Fallujah, Iraq to Camp LeJeune, NC, where he will arrive at 1300 Monday.